Death penalty delay looms

NEW YORK TIMES NEWS SERVICETHE BALTIMORE SUN

WASHINGTON - The Clinton administration is planning to postpone the first federal execution in nearly 40 years because of a lack of clemency procedures and concerns about racial and geographic disparities in death penalty cases, administration officials said yesterday.

The White House is awaiting Justice Department regulations for death row inmates to follow in seeking clemency from the president.

Texas inmate Juan Raul Garza, who was convicted seven years ago of three drug-related murders, is scheduled to be executed Aug. 5, and his lawyers said yesterday that they would use the new procedures as soon as they have them to ask President Clinton to spare Garza's life.

The Justice Department is also finishing a report on whether members of racial minorities or defendants in certain parts of the country are more likely to face the federal death penalty.

Data gathered by the Justice Department show that members of minorities make up more than three-quarters of the defendants in federal capital cases and that federal prosecutors in five districts, including two in New York, have filed nearly half of the federal cases in which the death penalty was an option.

The delay being suggested in Garza's case apparently would not be a moratorium like the one that Illinois Gov. George Ryan imposed and that is still in effect.

At the same time, any delay by Clinton would almost certainly contribute to the visibility of the death penalty issue in the presidential campaign.

That issue focuses on whether capital punishment is fair. Texas Gov. George W. Bush, the presumptive Republican presidential nominee, has been pressured repeatedly to postpone executions in his state, but has resisted, only adding to the politcal pressure.

He has insisted that the Texas system is fair, and most recently faced the contentious issue in declining to intercede in the execution June 23 of Gary Graham, for a 1981 murder Graham said he didn't commit. The state parole board and appeals courts had rejected his claims that he was convicted on shaky evidence from a single eyewitness and that his lawyer had done a poor job of mounting a defense.

Bush said he supported the execution and pointed out that Graham's case had been reviewed by 33 state and federal judges.

The Justice Department report on the federal penalty, to be released this month, is certain to generate questions about the fairness of the federal death penalty beyond the Garza case, which would be the first federal execution since John F. Kennedy was president, officials said. Twenty-one men face the death penalty for federal crimes.

The new clemency procedures, the first in federal capital cases since the federal death penalty was reinstated in 1988, should be completed within a week or two, a Justice Department spokesman said.

They will allow for the death row inmate's lawyer to make an oral presentation to a clemency panel, and the process, from filing to final decision, will take at least 90 days, officials said.

A White House official said Garza, who was convicted in 1993 in Brownsville, Texas, would be allowed to take advantage of the new procedures. Thus, his execution will have to be postponed, officials said.

A Justice Department spokesman said the department had no authority to grant a reprieve to Garza at this time, and that the sole power for such a reprieve now lies with the president.

Under the Constitution, the president's pardon powers are absolute. Thus, options in the Garza case include a pardon, which would erase the criminal record, commutation to a life sentence or a temporary reprieve, which would allow Garza to follow the new clemency procedures. A 90-day reprieve would put off the execution until after the election, one official noted.

"We're cautiously optimistic," said Garza's lawyer, Gregory W. Wiercioch of the Texas Defender Service in Houston. Wiercioch added that he had not been given official notice of any reprieve.

"Until then, we have to move forward on other fronts," he said.

Garza has had his hopes dashed before. When Judge Filemon B. Vela of U.S. District Court first proposed setting an August execution date, U.S. Attorney Mervyn M. Mossbacker Jr. joined the defense in asking that he not do so. Noting that it would be the first federal execution in more than three decades, Mossbacker said the Justice Department was developing guidelines and procedures to ensure that it would be carried out "in an appropriate, dignified and expeditious manner."

Although declaring that he was "not a proponent of the death penalty," Vela rejected the arguments and set the date, after which the U.S. attorney dropped further opposition.

Garza, a high school dropout, headed a drug-running operation that smuggled in tons of marijuana from Mexico. He was convicted of ordering the execution of three people as part of his criminal enterprise.